China’s first specialized legislation against domestic violence is one step closer to passage with the National People’s Congress (NPC) publishing a draft of the law for solicitation of comments. Late last year, the State Council had already made an earlier draft available for comment, but this is the first version of the bill to be sent to the NPC for deliberation.
The new draft (D2) features significant revisions from its predecessor (D1), but while there are some areas of clear improvement, not all of the changes are for the better.
Below are some of the key areas in which changes occurred:
Definition of domestic violence:
The State Council’s earlier draft made clear that domestic violence included both physical 以及 emotional or psychological harms between family members. (article 2). In D2 however, the definition of domestic violence only mentions physical infractions- listing beatings, injuries, restraint or forcible limits on physical liberty as examples. (Article 2).
Who is included:
The narrow definition of ‘family members’, provided in D1 was contentious because it excluded unmarried cohabitating couples. (D1 article 2). The draft’s official explanation went so far as to say that “there is no real difference between violence in relationships such as romantic involvements, cohabitation or that between former spouses, and violent conduct between ordinary members of society.” Not only does this view ignore the unique power dynamics and societal pressures of these relationships, but the emphasis on legal marriage entirely excludes homosexuals as well as extramarital relationships.
D2 simply sidesteps the issue by not defining ‘family members’ at all. Viewed most positively, this could be seen as leaving the question open. While the Marriage Law defines ‘family relationships’, there does not seem to be a clear definition of ‘family members’ in existing laws, leaving room for it to be interpreted as including persons with family-like relationships, even if they lack formal marriage, adoption or blood ties. There is even some basis for such optimism provided in an interpretation by the Supreme People’s Court on domestic violence crimes, that included cohabitating couples (though likely not homosexual couples) in its coverage. For now, however, it remains unclear how far the concept of ‘family’ will be extended, and it is just as likely that police, traditionally reluctant to get involved in domestic disputes, will not actively expand the scope of the law’s coverage.
Written Warnings System
Even within the reduced and physical harm based conception of domestic violence, the law further differentiates between different levels of harm. More serious offenses are to be addressed as crimes or administrative violations, while less serious cases will be addressed by a new written warning system requiring follow up visits to the victims and perpetrators, as well as education. (D2 16, 17; expanded from D1 19).
The positive note is that this system acknowledges that a person can be a victim of domestic violence even before a crime or administrative violation has occurred, allowing for police intervention. The concern, of course, is that the written warning system will be used in place of stricter measures by a police force that has been dismissive of domestic violence complaints.
The D1 draft allowed for protection rulings, which courts could issue incident to pending litigation under existing civil procedures. (Chapter IV). The D1 draft allowed that an application for such a ruling might be made by a victim of abuse as part of family law litigation litigation such as divorce, maintenance, custody, adoption or inheritance proceedings. Under this system, even if a case was not yet initiated, rulings could be made to protect a prospective plaintiff’s safety and interests—but if no case appeared in 30 days, the ruling would be revoked (article 27).
D2 changes this formulation by creating a new system of personal protection orders. These orders are not associated with a case, but may be independently applied for by anyone facing domestic violence, or showing an actual risk of facing domestic violence. (article 23). Allowing persons facing a ‘risk’ of domestic violence to apply for protection orders could potentially provide some relief to victims of psychological abuse, in recognition of the pattern of escalation common in domestic violence. For now, however it is unclear what level of proof of domestic violence must be offered in support of an application for a protection order. (d2 26).
The protections that can be sought under an order are essentially the same as those under the previous draft’s rulings: the offender can be made to stop the harm, leave the house, or otherwise leave the victim alone for up to 6 months. (D1 32,D2 28) Because protection rulings were potentially involved with litigation over support payments, they also allowed for protection of shared assets (D1-32(4)) which is not a concern of the new protection orders.
Violations of orders are punishable by a fine of up to 1,000 yuan and detention of up to 15 days.(D2 32). While not insignificant, it is questionable how much of a deterrent this will be, especially when it is similar to administrative punishments for conduct which might violate the order.
Most pressing is the question of enforcement. Because this draft contains the first legislative basis for protection orders, it is unclear who is charged with enforcement, and the draft provides little guidance. Courts’ own small departments of bailiffs or wardens that execute other civil court orders are inadequate to ensure the protection orders are effectively enforced. The regular police must be involved, but if the law fails to specify their duty to cooperate and coordinate in enforcement, they well believe they have an insufficient legal basis to aggressively enforce the orders.
Among the guiding principles of the D1 draft was that efforts to combat domestic violence would protect the victims’ safety and privacy and respect their wishes. (article 6). This language has been removed, as has liability for officials revealing private information. (D1 article 6, 40).
The D1 draft held that local governments ‘shall’ (应当) designate shelters for victims of domestic violence unable to return home, but this mandate is reduced to “may” (可以） in the new draft.
Most of the major changes in the new draft are listed above, but there are many other changes and linguistic edits, which might prove relevant.
This includes a general elimination of many provisions related to criminal procedure for handling domestic violence. Examples include dropping provisions that:
- required jails and detention centers provide domestic violence counseling (D1 12),
- called for police to separate parties for questioning when responding to domestic violence calls, and using age appropriate tactics and having an adult present when bringing minors in for questioning (D1 16).
- allowing for attaching protection order type restrictions on DV perpetrators (suspects) released on bail, given a suspended sentence or controlled release. (D1 35, 36).
It is likely that these ideas aren’t being discarded, but were viewed as more appropriately addressed by other laws and their implementation regulations, or already redundant with existing law. The creation of an independent protection order system, for example, makes it less critical that restrictions be applied to releases from custody, but the SPC interpretation on domestic violence crimes contains similar provisions at any rate. (@ items 13,21). The protections for juveniles were largely duplicated from the criminal procedure law, although it might be necessary to include them to cover questioning of minors outside of the criminal context.
Finally, while the problem existed in the D1 draft as well, the new draft remains vague and difficult to implement. This may be to allow different departments to craft their own implementation rules and procedures, or even to let allow different regions to experiment with different implementation models, but at times it is so severe that it threatens to undermine the most positive impacts of the law. The mandatory reporting system requiring medical facilities and schools to report abuse, for example, is still unclear on the penalties for failure to report, and even what department is responsible for giving the sanctions. (Article 33).